prevent extortion and an abuse of his position, the price he may charge for his services may be regulated by law.

It is but mere trifling with great and vital interests, to place legislation of this character upon the footing of laws attempting to fix the price of labor in ordinary avocations, or the price of merchandise in the usual transactions of commerce. Upon what principle is it that laws are constitutionally based which fix the price at which money may be loaned? Whatever diversity of opinion may exist, as to the wisdom or policy of such laws, no one questions their constitutionality. It has been a long and uniform custom in large cities, to license and regulate by law or municipal ordinance cartmen, hackmen, stage and omnibus lines, and fix their maximum rates of charges, and so far as our investigation has extended, the validity of such laws and ordinances have been invariably sustained.

Com. v. Duane, 98 Mass., 1.

So too, as to laws fixing the maximum amount of toll which may be taken by millers for grinding grain.

State v. Perry, 5 Jones, (N. C.), 252; State v. Nixon, 5 Jones, (N. C.), 258.

Such laws have been in force in Illinois ever since its organization as a State, and their validity has never been questioned.

Laws of Illinois, ed. of 1823, p. 264, R. S. of Ill. of 1845, ch. 71; R. S. of Ill. of 1874, p. 702.

Notwithstanding these statutes have been so repeatedly enacted and continually in force, it is believed that no decision can be found hold ing the same invalid or unconstitutional.

The enactment of laws of this character was no innovation in the exercise of legislative powers. In the third year of the reign of Will iam and Mary, cap. 12, section 24, it was enacted "That the justices of the peace of every county and other place within the realm of England or dominion of Wales, shall have power or authority, and are hereby enjoined and required at their next respective quarter or general sessions after Easter day, yearly, to assess and rate the prices of all land carriage of goods whatsover, to be brought into any place, or places within their respective limits or jurisdiction, by any common carrier or wagon, and the rates and assessments so made to certify to the several mayors and other chief officers of such respective market towns, to which all persons may resort for their information, and that no such wagoner or carrier shall take carriage of goods and merchandise, above the rates and prices set, upon pain to forfeit for every such offense the sum of five pounds, to be levied by distress and sale of his or their goods, by warrant of any two justices of the peace, where such wagoner or carrier shall reside, in manner aforesaid, to the use of the party grieved."

Bac. Abr., tit., "Carriers," (D).. This Act was passed at a time when Magna Charta had been recognized as the fundamental law of England for hundreds of years.

This great charter embodied the principle that no person shall be deprived of life, liberty or property, but by the judgment of his peers or the law of the land, which is an equivalent for the modern phrase, "due process of law."

The validity of this Act was repeatedly recognized by the highest English courts, and it seems never to have been regarded by anyone, as a violation of Magna Charta.

Murray v. Hoboken Land & Imp. Co., 18 How., 272 (59 U. S., XV., 372); Kirkman v. Shawcross, 6 T. R., 17; King v. Reeves, 2 Peake, N. P., 85; Pickford v. R. R. Co., 10 Mees. & W., 415.

In Ogden v. Saunders, 12 Wheat., 259, laws which limit the fees of professional men, and the charges of tavern-keepers and a multitude of others of a similar character, which are said to crowd the Codes of every State, are referred to as of unquestionable validity.

The right of the General Assembly to regulate ferries and prescribe maximum rates of ferriage is conceded.

It will not answer the question, to say that the right to maintain a ferry is a "franchise" and, therefore, the difference.

Why may Government say to the citizen, you have no right to maintain a common ferry and charge tolls therefor, even upon your own land, without a license or permit, or unless the franchise has been granted to you? Riparian possessors are not by virtue of such possession, entitled to the privilege of maintaining a ferry. Mills v. Co. Commissioners, 3 Scam., 53. A ferry franchise is not an incident to the ownership of land. A party cannot maintain a ferry on his own land without the consent of the State.

Trustees of Schools v. 1atman, 13 Ill., 27. Why should a citizen be thus restrained in the use of his own land?

The answer to these questions is obvious: The ferryman pursues a public calling, and occupies such a position that the public, or those who travel, must avail themselves of his services.

The regulation of draymen and hackmen, including the charges they may receive, is conceded to be "within the legitimate exercise of the police powers of the Government." It is suggested that this right arises from the fact that such persons ply their vocation upon public streets.

A moment's consideration will show that the motive and necessity, for the exercise of such power, proceeds from another source. It is an application of the same principles which justifies the regulation of the tolls of millers or ferrymen, or the charges of other common carriers. In populous cities and towns, travelers are compelled to employ such means of transportation of their persons, luggage or other property as may be at hand, and cannot, without great inconvenience, stop to dicker about the price.

Such persons, like public warehousemen, pursue a public employment. They are in reality common carriers, who must offer their services to all upon equal terms.

Counsel say: "If the carriage of grain in vessels and boats by land and water is commerce, then the handling of grain in the manner shown by this record is commerce." "This warehouse or elevator is just as necessary for the purposes of commerce and trade as the bottoms which float on the river, or the superstructure on which cars are ruu, or the use of locomotives or cars."

The public warehousemen must, therefore, in the language of the authorities, pursue a "public employment, or exercise a public office."

Nav. Co. v. Bk., 6 How., 381; Sandford v. R. R. Co., 24 Pa., 381; R. R. Co. v. People, 56 Ill., 377.

The commission of the offense of extortion is not necessarily confined to public officers, strictly speaking. It may be committed by any person who pursues a public employment and sus tains such relations to the public that the people must, without great inconvenience, necessarily deal with him.

Thus, at common law, in the case of a miller where the custom has ascertained the toll, if the miller takes more than the custom warrants, it is extortion.

And the same if a ferryman takes more than his due by custom for the use of his ferry. And it was held that if the framer of a market erects so many stalls as not to leave sufficient room for the market people to stand and sell their wares, so that, for want of rooms, they are forced to hire stalls from the framer, the taking of money for the use of the stalls in such a case is extortion.

Bish. Cr. L., 5th ed., sec. 394; Rex v. Burdett, 1 Ld. Raym., 148; Rex v. Roberts, 4 Mod., 101; 1 Russ. Čr., 143.

In the language of Chief Justice Marshall, the question whether a law be void for its repugnancy to the Constitution, is at all times a question of much delicacy, which ought seldom, if ever, to be decided in the affirmative in a doubtful case. "The opposition between the Con stitution and the law should be such that the judge feels a clear and strong conviction of their incompatibility with each other."

Fletcher v. Peck, 6 Cr., 128.

"It is but a decent respect due to the wis dom, the integrity and the patriotism of the legislative body by which any law is passed, to presume in favor of its validity, until its violation of the Constitution is proved beyond all reasonable doubt."

Ogden v. Saunders, 12 Wheat., 270. The General Assembly of Illinois was the competent and proper body to determine all questions as to the validity or expediency of the Act in question, and in the first instance to pass upon the question of its constitutionality. The majority of the Supreme Court of that State has also affirmed its validity.

Mr. Chief Justice Waite delivered the opinion of the court:

The question to be determined in this case is whether the General Assembly of Illinois can, under the limitations upon the legislative power of the States imposed by the Constitution of the United States, fix by law the maximum of charges for the storage of grain in warehouses at Chicago and other places in the State having not less than one hundred thousand inhabitants, "in which grain is stored in bulk, and in which the grain of different owners is mixed together, or in which grain is stored in such a manner that the identity of

It is claimed that such a law is repugnant: 1. To that part of section 8, article 1, of the Constitution of the United States which confers upon Congress the power "to regulate commerce with foreign nations and among the several States; '

2. To that part of section 9 of the same article which provides that “No preference shall be given by any regulation of commerce or revenue to the ports of one State over those of another;" and,

3. To that part of Amendment XIV. which ordains that no State shall "Deprive any person of life, liberty or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws." We will consider the last of these objections first.

Every statute is presumed to be constitutional. The courts ought not to declare one to be unconstitutional, unless it is clearly so. If there is doubt, the expressed will of the Legislature should be sustained.

The Constitution contains no definition of the word "deprive," as used in the 14th Amendment. To determine its signification, therefore, it is necessary to ascertain the effect which usage has given it, when employed in the same or a like connection.

While this provision of the Amendment is new in the Constitution of the United States as a limitation upon the powers of the States, it is old as a principle of civilized government. It is found in Magna Charta, and, in substance if not in form, in nearly or quite all the constitutions that have been from time to time adopted by the several States of the Union. By the 5th Amendment, it was introduced into the Constitution of the United States as a limitation upon the powers of the National Government, and by the 14th, as a guaranty against any encroachment upon an acknowledged right of citizenship by the Legislatures of the States.

When the people of the United Colonies separated from Great Britain, they changed the form, but not the substance, of their government. They retained for the purposes of government all the powers of the British Parliament and, through their State Constitutions or other forms of social compact, undertook to give practical effect to such as they deemed necessary for the common good and the security of life and property. All the powers which they retained they committed to their respective States, unless in express terms or by implication reserved to themselves. Subsequently, when it was found necessary to establish a national government for national purposes, a part of the powers of the States and of the people of the States was granted to the United States and the people of the United States. This grant operated as a further limitation upon the powers of the States, so that now the governments of the States possess all the powers of the Parliament of England, except such as have been delegated to the United States or reserved by the people. The reservations by the people are shown in the prohibitions of the constitutions.

When one becomes a member of society, he necessarily parts with some rights or privileges

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which, as an individual not affected by his relations to others, he might retain. A body politic," as aptly defined in the preamble of the Constitution of Massachusetts. is a social com pact by which the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for the common good." This does not confer power upon the whole people to control rights which are purely and exclusively private, Thorpe v. R. R. Co., 27 Vt., 143, but it does authorize the establishment of laws requiring each citizen to so conduct himself, and so use his own property as not unnecessarily to injure another. This is the very essence of government, and has found expression in the maxim, Sic utere tuo ut alienum non lædas. From this source come the police powers, which, as was said by Chief Justice Taney in the License Cases, 5 How., 583, Are nothing more or less than the powers of government inherent in every sovereignty, that is to say, the power to govern men and things." Under these powers the government regulates the conduct of its citizens one towards another, and the manner in which each shall use his own property, when such regulation becomes necessary for the public good. In their exercise it has been customary in England from time immemorial, and in this country from its first colonization, to regulate ferries, common carriers, hackmen, bakers, millers, wharfingers, innkeepers, etc., and in so doing to fix a maximum of charge to be made for services rendered, accommodations furnished, and articles sold. To this day statutes are to be found in many of the States upon some or all these subjects; and we think it has never yet been suc cessfully contended that such legislation came within any of the constitutional prohibitions against interference with private property. With the 5th Amendment in force, Congress, in 1820, conferred power upon the City of Washington "to regulate the rates of wharfage at private wharves, * the sweeping of chimneys, and to fix the rates of fees therefor, * and the weight and quality of bread," 3 Stat. at L., 587, sec. 7; and in 1848, "to make all necessary regulations respecting hackney carriages and the rates of fare of the same, and the rates of hauling by cartmen, wagoners, carmen and draymen, and the rates of commission of auctioneers," 9 Stat. at L., 224, sec. 2.

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From this it is apparent that, down to the time of the adoption of the 14th Amendment, it was not supposed that statutes regulating the use, or even the price of the use, of private property necessarily deprived an owner of his property without due process of law. Under some circumstances they may, but not under all. The Amendment does not change the law in this particular; it simply prevents the States from doing that which will operate as such a deprivation.

This brings us to inquire as to the principles upon which this power of regulation rests, in order that we may determine what is within and what without its operative effect. Looking, then, to the common law, from whence came the right which the Constitution protects, we find that when private property is affected with a public interest, it ceases to be juris pri

vati only." This was said by Lord Chief Justice Hale more than two hundred years ago, in his treatise De Portibus Maris, 1 Harg. L. Tr., 78, and has been accepted without objection as an essential element in the law of property ever since. Property does become clothed with a public interest when used in a manner to make it of public consequence, and affect the community at large. When, therefore, one devotes his property to a use in which the public has an interest, he, in effect, grants to the public an interest in that use, and must submit to be controlled by the public for the common good, to the extent of the interest he has thus created. He may withdraw his grant by discontinuing the use; but, so long as he maintains the use, he must submit to the control.

Thus, as to ferries, Lord Hale says, in his treatise De Jure Maris, 1 Harg. L. Tr., 6, the King has "A right of franchise or privilege, that no man may set up a common ferry for all passengers, without a prescription time out of mind, or a charter from the King. He may make a ferry for his own use or the use of his family, but not for the common use of all the King's subjects passing that way; because it doth in consequence tend to a common charge, and is become a thing of public interest and use, and every man for his passage pays a toll, which is a common charge, and every ferry ought to be under a public regulation, viz.: that it give attendance at due times, keep a boat in due order, and take but reasonable toll; for if he fail in these he is finable." So if one owns the soil and landing-places on both banks of a stream, he cannot use them for the purposes of a public ferry, except upon such terms and conditions as the body politic may from time to time impose; and this because the common good requires that all public ways shall be under the control of the public authorities. This privilege or prerogative of the King, who in this connection only represents and gives another name to the body politic, is not primarily for his profit, but for the protection of the people and the promotion of the general welfare.

And, again, as to wharves and wharfingers, Lord Hale, in his treatise De Portibus Maris, already cited, says:

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“A man, for his own private advantage, may, in a port or town, set up a wharf or crane, and may take what rates he and his customers can agree for cranage, wharfage, housellage, pesage, for he doth no more than is lawful for any man to do, viz.: makes the most of his own. If the King or subject have a public wharf, unto which all persons that come to that port must come and unlade or lade their goods as for the purpose, because they are the wharfs only licensed by the Queen, or because there is no other wharf in that port, as it may fall out where a port is newly erected; in that case there cannot be taken arbitrary and excessive duties for cranage, wharfage, pesage, etc., neither can they be enhanced to an immoderate rate; but the duties must be reasonable and moderate, though settled by the King's license or charter. For now the wharf, and crane and other conveniences are effected with a public interest, and they cease to be juris privati only; as if a man set out a street in new building on his own land, it is now no longer bare private in|terest, but is affected by a public interest."

already been said to show that, when private property is devoted to a public use, it is subject to public regulation. It remains only to ascertain whether the warehouses of these plaintiffs in error, and the business which is carried on there, come within the operation of this principle.

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For this purpose we accept as true the statements of fact contained in the elaborate brief of one of the counsel of the plaintiffs in error. From these it appears that “The great producing region of the West and Northwest sends its grain by water and rail to Chicago, where the greater part of it is shipped by vessel for transportation to the sea-board by the Great Lakes, and some of it is forwarded by railway to the Eastern ports. * ** Vessels, to some extent, are loaded in the Chicago harbor, and sailed through the St. Lawrence directly to Europe. The quantity (of grain )received in Chicago has made it the greatest grain market in the world. This business has created a demand for means by which the im mense quantity of grain can be handled or stored, and these have been found in grain ware- | houses, which are commonly called elevators, because the grain is elevated from the boat or car, by machinery operated by steam, into the bins prepared for its reception, and elevated from the bins, by a like process, into the vessel or car which is to carry it on. In this way the largest traffic between the citizens of the country north and west of Chicago, and the cit izens of the country lying on the Atlantic coast north of Washington is in grain which passes through the elevators of Chicago. In this way the trade in grain is carried on by the inhabitants of seven or eight of the great States of the West with four or five of the States lying on the seashore, and forms the largest part of interstate commerce in these States. The grain warehouses or elevators in Chicago are immense structures, holding from 300,000 to 1,000,000 bushels at one time, according to size. They are divided into bins of large capacity and great strength. * *They are located with the river harbor on one side and the railway tracks on the other; and the grain is run through them from car to vessel, or boat to car, as may be demanded in the course of business. It has been found impossible to preserve each owner's grain separate, and this has given rise to a system of inspection and grading, by which the grain of different owners is mixed, and receipts issued for the number of bushels which are negotiable, and redeemable in like kind, upon demand. This mode of conducting the business was inaugurated more than twenty years ago, and has grown to immense proportions. The railways have found it impracticable to own such elevators, and public policy forbids the transac tion of such business by the carrier; the ownership has, therefore, been by private individuals, who have embarked their capital and devoted their industry to such business as a private pursuit."

In this connection it must also be borne in mind that, although in 1874 there were in Chicago fourteen warehouses adapted to this particular business, and owned by about thirty persons, nine business firms controlled them, and that the prices charged and received for storage were such "as have been from year to

year agreed upon and established by the different elevators or warehouses in the City of Chicago, and which rates have been annually published in one or more newspapers printed in said city, in the month of January in each year, as the established rates for the year then next ensuing such publication." Thus it is apparent that all the elevating facilities through which these vast productions "of seven or eight great States of the West " must pass on the way "to four or five of the States on the seashore” may be a "virtual" monopoly.

Under such circumstances it is difficult to see why, if the common carrier, or the miller, or the ferryman, or the innkeeper, or the wharfinger, or the baker, or the cartman, or the hackneycoachman, pursues a public employment and exercises "a sort of public office," these plaintiffs in error do not. They stand, to use again the language of their counsel, in the very "gateway of commerce," and take toll from all who pass. Their business most certainly "tends to a common charge, and is become a thing of public interest and use." Every bushel of grain for its passage pays a toll, which is a common charge," and, therefore, according to Lord Hale, every such warehouseman "ought to be under public regulation, viz.: that he * * take but reasonable toll." Certainly, if any business can be clothed "with a public interest, and cease to be juris privati only," this has been. It may not be made so by the operation of the Constitution of Illinois or this statute, but it is by the facts.

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We also are not permitted to overlook the fact that, for some reason, the people of Illinois, when they revised their Constitution in 1870, saw fit to make it the duty of the General Assembly to pass laws" for the protection of producers, shippers and receivers of grain and produce, art. XIII., sec.7; and by sec. 5 of the same article, to require all railroad companies receiving and transporting grain in bulk or otherwise to deliver the same at any elevator to which it might be consigned, that could be reached by any track that was or could be used by such company, and that all railroad companies should permit connections to be made with their tracks, so that any public warehouse, etc., might be reached by the cars on their railroads. This indicates very clearly that during the twenty years in which this peculiar business had been assuming its present "immense proportions," something had occurred which led the whole body of the people to suppose that remedies such as are usually employed to prevent abuses by virtual monopolies might not be inappropriate here. For our purposes we must assume that, if a state of facts could exist that would justify such legislation, it actually did exist when the statute now under consideration was passed. For us the question is one of power, not of expediency. If no state of circumstances could exist to justify such a statute, then we may declare this one void, because in excess of the legislative power of the State. But if it could, we must presume it did. Of the propriety of legislative interference within the scope of legislative power, the Legislature is the exclusive judge.

Neither is it a matter of any moment that no precedent can be found for a statute precisely like this. It is conceded that the business is